University of Petroleum and

Energy Studies 
School of Law 
 

ASSIGNMENT
SEMESTER - 4

LAW OF EVIDENCE

Topic: WITNESS EXAMINATION THROUGH VIDEO

CONFRENCING (State of Maharashtra vs.Dr. Praful B. Desai)

Submitted To: Mr ANIL KUMAR VISHWAKARMA

Name: HRITHIK SHARMA

SAP ID: 500070320

Roll No: R760218024
WITNESS EXAMINATION THROUGH VIDEO
CONFRENCING
Once the victim is rehabilitated, it is not in her interest to recall her to the court of law for any
purpose including evidence, as she is compelled to relive the trauma and indignity. Therefore,
it would be better to take into consideration the statement given by her before repatriation and
act accordingly. If, however, her recall is necessitated, it should be done in such a way that it
causes  least harm to her. Dislocating her from the rehabilitated ambience usually causes
serious problems. Therefore, if her statement is to be recorded, or evidence taken, it should be
done in commission  or through video conferencing at an appropriate place which would
create least disturbance and discomfort to the person concerned. The Supreme Court has held
in State of Maharashtra vs Praful Desai (2003 4 SCC 601) that the recording of evidence by
way of video conferencing might be done in cases where the attendance of the witness cannot
be ensured without delay, expense and inconvenience. It was also held by the apex court that
recording of evidence by video conferencing was a ‘procedure established by law’ under
Article 21 of the Constitution and did not violate the rights of the accused. The court
observed that although the rights of the accused must be safeguarded, they should not be
overemphasised to the extent of forgetting that the victim also has rights.

Therefore, the ITPA should make it mandatory to provide video conferencing facility at the
place where the victim would find it comfortable. The victim’s best interests should be the
deciding factor in choosing the place and time of video recording/conferencing.

Another order by the High Court of Delhi has made notable improvement in the field of
criminal jurisprudence and victim protection in India. On 27 February 2004, the High Court
delivered this order, in Crl. M.1467/04 in Crl. W. 532/1992, in a petition filed by
an NGO Prajwala of Hyderabad through its advocate Ms. Aparna Bhat. Thanks to the
intervention of the Delhi High Court, girls rescued from the brothels in Delhi were repatriated
and rehabilitated in their hometowns in several parts of India including Andhra Pradesh. The
rehabilitation work was carried out by the Government of Andhra Pradesh with the
involvement and participation of the NGO, Prajwala. Many of these girls who had been
rehabilitated to districts like Nellore, were summoned by the trial court in Delhi for providing
evidence against the exploiters. Since these girls were repatriated after spending considerable
time in the rescue home in Delhi, ideally speaking, their statements should have been
recorded by the trial court during that period. However, due to the delays in the trial, this was
not done and, therefore, these girls were called to Delhi.

The government agencies in Andhra Pradesh tried their best to get in touch with these girls.
Since their efforts failed, Prajwala was asked to step in again. The NGO realised that these
girls were reluctant and unwilling to go to Delhi mainly because they did not want to relive
the trauma and agony which they had undergone. It was decided to move the trial court for
facilitating the recording of evidence of these girls to their hometowns. However, the court
did not approve of this for want of required infrastructure. The matter was, therefore, taken
up with the High Court of Delhi which directed the government counsel to look for
alternatives. Since National Informatics Centre did not have the required facilities, the
counsels for the government and the NGO took initiative, interacted with the government of
Andhra Pradesh and found that video conferencing facility was available in Andhra Bhawan,
New Delhi. The A.P. government agreed to provide this facility, which they have in Delhi
and the concerned district headquarters in Andhra Pradesh. The High Court confirmed the
availability of these facilities at A.P. Bhawan by judicial officers and then gave orders for
recording the evidence of the victims through video conferencing. The court also directed that
the state of Andhra Pradesh make appropriate arrangements for the same and that the trial
court ensure adequate safeguards enumerated in the decision of the Supreme Court in State of
Maharashtra vs.Dr. Praful B. Desai, 2003 4 SCC 601. This was a historical decision of the
Delhi High Court because, for the first time in India, inter-state video conferencing was being
utilised in criminal trials.  Once implemented, this judgment can go a long way in protecting
the rights of trafficked victims and, therefore, is a judgment truly honouring the human rights
of the victims.
CASE LAW OF:
State of Maharashtra vs.Dr. Praful B. Desai,
2003 4 SCC 601

  Facts are as follows:

The complainant’s wife was suffering from terminal cancer. It is the case of the prosecution
that the complainant’s wife was examined by Dr.Ernest Greenberg of Sloan Kettering
Memorial Hospital, New York, USA, who opined that she was inoperable and should be
treated only with medication. Thereafter the complainant and his wife consulted the
Respondent, who is a consulting surgeon practising for the last 40 years.

In spite of being made aware of Dr Greenberg’s opinion the Respondent suggested surgery
to remove the uterus. It is the case of the prosecution that the complainant and his wife agreed
to the operation on the condition that it would be performed by the Respondent. It is the case
of the prosecution that on 22nd December 1987 one Dr. A. K. Mukherjee operated on the
complainant’s wife. It is the case of the prosecution that when the stomach was opened
ascetic fluids oozed out of the abdomen. It is the case of the prosecution that Dr. A. K.
Mukherjee contacted the Respondent who advised closing up the stomach. It is the case of the
prosecution that Dr. A.K. Mukherjee accordingly closed the stomach and this resulted in
intestinal fistula. It is the case of the prosecution that whenever the complainant’s wife ate or
drank the same would come out of the wound.

It is the case of the prosecution that the complainant’s wife required 20/25 dressings a day
for more than 3 1/2 months in the hospital and thereafter till her death. It is the case of the
prosecution that the complainant’s wife suffered terrible physical torture and mental agony. It
is the case of the prosecution that the Respondent did not once examine the complainant’s
wife after the operation.
It is the case of the prosecution that the Respondent claimed that the complainant’s wife was
not his patient. It is the case of the prosecution that the bill sent by the Bombay Hospital
belied the Respondent case that the complainant’s wife was not his patient. The bill sent by
the Bombay Hospital showed the fees charged by the Respondent. It is the case of the
prosecution that the Maharashtra Medical Council has, in an inquiry, held the Respondent
guilty of negligence and strictly warned him.

5. On a complaint by the complainant a case under Section 338 read with Sections 109 and
114 of the Indian Penal Code was registered against the Respondent and Dr. A. K.
Mukherjee. Process was issued by the Metropolitan Magistrate, 23rd Court, Esplanade,
Mumbai. The Respondent challenged the issue of process and carried the challenge right up
to this Court. The Special Leave Petitions filed by the Respondent was dismissed by this
Court on 8th July 1996. This Court directed the Respondent to face trial. We are told that
evidence of six witnesses, including that of the complainant and the investigating officer, has
been recorded.

6. On 29th June 1998 the prosecution made an application to examine Dr.

Greenberg through video-conferencing. The trial court allowed that application on 16th
August 1999. The Respondent challenged that order in the High Court. The High Court has
by the impugned order allowed the Criminal Application filed by the Respondent. Hence
these two Appeals.

7. At this stage it is appropriate to mention that Dr. Greenberg has expressed his willingness
to give evidence, but has refused to come to India for that purpose. It is an admitted position
that, in the Criminal Procedure Code there is no provision by which Dr. Greenberg can be
compelled to come to India to give evidence. Before us a passing statement was made that the
Respondent did not admit that the evidence of Dr. Greenberg was relevant or essential.
However, on above-mentioned facts, it prima-facie appears to us that the evidence of Dr.
Greenberg would be relevant and essential to the case of the prosecution.

8. Ms. Jaisingh, senior counsel argued for the State of Maharashtra. The complainant, except
for pointing out a few facts, adopted her arguments. On behalf of the Respondent submissions
were made by Senior Counsels Mr Sundaram and Mr Ashok Desai.

9. It was submitted on behalf of the Respondents, that the procedure governing a criminal
trial is crucial to the basic right of the Accused under Articles 14 and 21 of the Constitution
of India. It was submitted that the procedure for trial of a criminal case is expressly laid
down, in India, in the Code of Criminal Procedure. It was submitted that the Code of
Criminal Procedure lays down specific and express provisions governing the procedure to be
followed in a criminal trial. It was submitted that the procedure laid down in the Code of
Criminal Procedure was the “procedure established by law”. It was submitted that the
Legislature alone had the power to change the procedure by enacting a law amending it, and
that when the procedure was so changed, that became “the procedure established by law”. It
was submitted that any departure from the procedure laid down by law would be contrary to
Article 21. In support of this submission reliance was placed on the cases of A. K. Gopalan
versus State of Madras reported in AIR 1950 S. C. 27, Nazir Ahmed versus Emperor reported
in AIR 1936 Privy Council 253 and Siva Kumar Chadda versus Municipal Corporation of
Delhi reported in AIR 1975 S.C. 915. There can be no dispute with these propositions.
However if the existing provisions of the Criminal Procedure Code permit recording of
evidence by video conferencing then it could not be said that “procedure established by law”
has not been followed.

10. This Court was taken through various sections of the Criminal Procedure Code. Emphasis
was laid on Section 273, Criminal Procedure Code. It was submitted that Section 273,
Criminal Procedure Code does not provide for the taking of evidence by video conferencing.
Emphasis was laid on the words “Except as otherwise provided” in Section 273 and it was
submitted that unless there is an express provision to the contrary, the procedure laid down in
Section 273 has to be followed as it is mandatory. It was submitted that Section 273 mandates
that evidence “shall be taken in the presence of the accused”. It is submitted that the only
exceptions, which come within the ambit of the words “except as otherwise provided” are
Sections 284 to 290 (those dealing with issue of Commissions); Section 295 (affidavit in
proof of conduct of public servant) and Section 296 (evidence of formal character on
affidavit). It is submitted that the term “presence” in Section 273 must be interpreted to mean
physical presence in flesh and blood in open Court. It was submitted that the only instances in
which evidence may be taken in the absence of the Accused, under the Criminal Procedure
Code are Sections 317 (provision for inquiries and trial being held in the absence of accused
in certain cases) and 299 (record of evidence in the absence of the accused). It was submitted
that as Section 273 is mandatory, the Section is required to be interpreted strictly. It was
submitted that Section 273 must be given its contemporary meaning (Contemporanea
exposition est optima et fortissimm – The contemporaneous exposition is the best and the
strongest in law). It was submitted that video conferencing was not known and did not exist
when the Criminal Procedure Code was enacted/amended. It was submitted that presence on
a screen and recording of evidence by video conferencing was not contemplated by the
Parliament at the time of drafting/amending the Criminal Procedure Code. It was submitted
that when the Legislature intended to permit video conferencing, it has expressly provided for
it, as is evident from the Ordinance passed by the State of Andhra Pradesh in December 2000
permitting the use of video conferencing under Sec. 167(2) Criminal Procedure Code in
remand applications. It is pointed out that a similar amendment is being considered in
Maharashtra. It is submitted that Section 273 is analogous to the Confrontation Clause set out
in the VIth Amendment to the US Constitution.
It is submitted that Courts in USA have held that video conferencing does not satisfy the
requirements of the Confrontation Clause.

11. This argument found favour with the High Court. The High Court has relied on
judgments of various High Courts which have held that Section 273 is mandatory and that
evidence must be recorded in the presence of the accused. To this extant no fault can be
found with the Judgment of the High Court. The High Court has then considered what Courts
in foreign countries, including Courts in USA, have done. The High Court then based its
decision on the meaning of the term “presence” in various dictionaries and held that the term
“presence” in Section 273 means actual physical presence in Court. We are unable to agree
with this. We have to consider whether evidence can be led by way of video-conferencing on
the provisions of the Criminal Procedure Code and the Indian Evidence Act. Therefore, what
view has been taken by Courts in other countries is irrelevant. However, it may only be
mentioned that the Supreme Court of USA, in the case of Maryland vs. Santra Aun Craig
[497 US 836], has held that recording of evidence by video-conferencing was not a violation
of the Sixth Amendment (Confrontation Clause).

12. Considering the question on the basis of Criminal Procedure Code, we are of the view
that the High Court has failed to read Section 273 properly.
One does not have to consider dictionary meanings when a plain reading of the provision
brings out what was intended. Section 273 reads as follows:
“Section 273: Evidence to be taken in presence of accused.
Except as otherwise expressly provided, all evidence taken in the course of the trial or other
proceeding shall be taken in the presence of the accused, or, when his personal attendance is
dispensed with, in the presence of his pleader.

Explanation :

In this section, “accused” includes a person in relation to whom any proceeding under
Chapter VIII has been commenced under this Code.
Thus Section 273 provides for dispensation from personal attendance. In such cases evidence
can be recorded in the presence of the pleader. The presence of the pleader is thus deemed to
be presence of the Accused. Thus Section 273 contemplates constructive presence. This
shows that actual physical presence is not a must. This indicates that the term “presence”, as
used in this Section, is not used in the sense of actual physical presence. A plain reading of
Section 273 does not support the restrictive meaning sought to be placed by the Respondent
on the word “presence”. One must also take note of the definition of the term ‘Evidence’ as
defined in the Indian Evidence Act. Section 3 of the Indian Evidence Act reads as follows:
“Evidence-Evidence means and includes– (1) all statements which the Court permits or
requires to be made before it by witnesses, in relation to matters of fact under inquiry;
such statements are called oral evidence (2) all documents including electronic records
produced for the inspection of the Court;
such documents are called documentary evidence” Thus evidence can be both oral and
documentary and electronic records can be produced as evidence. This means that evidence,
even in criminal matters, can also be by way of electronic records. This would include
videoconferencing.

13. One needs to set out the approach which a Court must adopt in deciding such questions. It
must be remembered that the first duty of the Court is to do justice. As has been held by this
Court in the case of Sri Krishna Gobe versus State of Maharashtra [(1973) 4 SCC 23] Courts
must endeavour to find the truth. It has been held that there would be failure of justice not
only by an unjust conviction but also by acquittal of the guilty for unjustified failure to
produce available evidence. Of course the rights of the Accused have to be kept in mind and
safeguarded, but they should not be over emphasized to the extent of forgetting that the
victims also have rights.

14. It must also be remembered that the Criminal Procedure Code is an ongoing statute. The
principles of interpreting an ongoing statute have been very succinctly set out by the leading
jurist Francis Bennion in his commentaries titled “Statutory Interpretation”, 2nd Edition page
617:
“It is presumed the Parliament intends the Court to apply to an ongoing Act a construction
that continuously updates its wordings to allow for changes since the Act was initially
framed. While it remains law, it has to be treated as always speaking. This means that in its
application on any day, the language of the Act though necessarily embedded in its own time,
is nevertheless to be construed in accordance with the need to treat it as a current law.
..
In construing an ongoing Act, the interpreter is to presume that Parliament intended the Act
to be applied at any future time in such a way as to give effect to the original intention.
Accordingly, the interpreter is to make allowances for any relevant changes that have
occurred since the Act’s passing, in law, in social conditions, technology, the meaning of
words and other matters. That today’s construction involves the supposition that Parliament
was catering long ago for a state of affairs that did not then exist is no argument against that
construction. Parliament, in the wording of an enactment, is expected to anticipate temporal
developments. The drafter will foresee the future and allow for it in the wording.
.
An enactment of former days is thus to be read today, in the light of dynamic processing
received over the years, with such modification of the current meaning of its language as will
now give effect to the original legislative intention. The reality and effect of dynamic
processing provides the gradual adjustment.
It is constituted by judicial interpretation, year in and year out.
It also comprises processing by executive officials. “
15. At this stage the words of Justice Bhagwati in the case of National Textile Workers’
Union v. P.R. Ramakrishnan, (1983) 1 SCC 228, at page 256, need to be set out. They are:
“We cannot allow the dead hand of the past to stifle the growth of the living present. Law
cannot stand still; it must change with the changing social concepts and values. If the bark
that protects the tree fails to grow and expand along with the tree, it will either choke the tree
or if it is a living tree, it will shed that bark and grow a new living bark for itself. Similarly, if
the law fails to respond to the needs of changing society, then either it will stifle the growth
of the society and choke its progress or if the society is vigorous enough, it will cast away the
law which stands in the way of its growth. Law must therefore constantly be on the move
adapting itself to the fast changing society and not lag behind.”
16. This Court has approved the principle of updating construction, as enunciated by Francis
Bennion, in a number of decisions. These principles were quoted with approval in the case of
Commissioner of Income Tax, Bombay versus M/s Podar Cement Pvt. Ltd. [(1997) 5 SCC
482]. They were also cited with approval in the case of State versus S. J. Chowdhury [(1996)
2 SCC 428]. In this case it was held that the Evidence Act was an ongoing Act and the word
“handwriting” in Section 45 of that Act was construed to include “typewriting”. These
principles were also applied in the case of SIL Import USA versus Exim Aides Silk Exporters
[(1999) 4 SCC 567]. In this case the words “notice in writing”, in Section 138 of the
Negotiable Instruments Act, were construed to include a notice by fax. On the same principle
Courts have interpreted, over a period of time, various terms and phrases. To take only a few
examples:- “stage carriage” has been interpreted to include “electric tramcar”; “steam
tricycle” to include “locomotive”; “telegraph” to include “telephone”; “bankers books” to
include “microfilm”; “to take note” to include “use of tape recorder”;
“documents” to include “computer database’s”.

17. These principles have also been applied by this Court whilst considering an analogous
provision of the Criminal Procedure Code. In the case of Basavaraj R. Patil v. State of
Karnataka [(2000) 8 SCC 740] the question was whether an Accused needs to be physically
present in Court to answer the questions put to him by Court whilst recording his statement
under Section 313. To be remembered that under Section 313 the words are “for the purpose
of enabling the accused personally to explain” (emphasis supplied). The term “personally” if
given a strict and restrictive interpretation would mean that the Accused had to be physically
present in Court. In fact the minority Judgment in this case so holds. It has however been held
by the majority that the Section had to be considered in the light of the revolutionary changes
in technology of communication and transmission and the marked improvement in facilities
for legal aid in the country. It was held, by the majority, that it was not necessary that in all
cases the Accused must answer by personally remaining present in Court.

18. Thus the law is well settled. The doctrine “Contemporanea exposition est optima et
fortissimm” has no application when interpreting a provision of an on-going statute/act like
the Criminal Procedure Code.

19. At this stage we must deal with a submission made by Mr Sundaram. It was submitted
that video-conferencing could not be allowed as the rights of an accused, under Article 21 of
the Constitution of India, cannot be subjected to a procedure involving “virtual reality”. Such
an argument displays ignorance of the concept of virtual reality and also of video
conferencing.
 Virtual reality is a state where one is made to feel, hear or imagine what does not really
exists. In virtual reality one can be made to feel cold when one is sitting in a hot room, one
can be made to hear the sound of ocean when one is sitting in the mountains, one can be
made to imagine that he is taking part in a Grand Prix race whilst one is relaxing on one sofa
etc. Video conferencing has nothing to do with virtual reality.

Advances in science and technology have now, so to say, shrunk the world.
They now enable one to see and hear events, taking place far away, as they are actually
taking place. To take an example today one does not need to go to South Africa to watch
World Cup matches. One can watch the game, live as it is going on, on one’s TV. If a person
is sitting in the stadium and watching the match, the match is being played in his
sight/presence and he/she is in the presence of the players. When a person is sitting in his
drawing-room and watching the match on TV, it cannot be said that he is in presence of the
players but at the same time, in a broad sense, it can be said that the match is being played in
his presence. Both, the person sitting in the stadium and the person in the drawing-room, are
watching what is actually happening as it is happening. This is not virtual reality, it is actual
reality.